Succession is the process of succeeding or passing of rights of property from one person to another. There are two types of succession in Hindu Law:
- Intestate succession
- Testamentary succession
Section 30 of the Hindu Succession Act, 1956[i] deals with testamentary succession. As per this section, any Hindu male may dispose of by will or other testamentary disposition any property which is capable of being so [‘disposed of by him or by her’ after Hindu Succession Amendment Act, 2005[ii]], in accordance with the time being in force and applicable to Hindus.
Will is a legally executed written instrument by which a person makes disposition of his or her estate to take effect after death
Section 2 of The Indian Succession Act, 1925 (applicable for only Hindus, Buddhists, Sikhs & Jains)
(h) “Will” means the legal declaration of the intention of a testator with respect to his property which he desires to be carried into effect after his death.[iii]
Who can make a will?
-Any person who has attained an age of majority i.e. 18 years old
– Should not be insolvent, unsound
– Deaf, Blind or Dumb can make a will provided they understand the consequences.
– Will made in unconscious or hampered (intoxicated) state of mind does not stand.
What are the ssentials to be considered while making a will?
A will need not be made in a stamp paper, however making it in a stamp paper adds to its authenticity.
Will should be executed in the presence of 2 independent witnesses (non-beneficiaries) who are competent to contract.
These witnesses must attest in the presence of the testator and each other. Typically, lawyers, doctors, CAs are chosen to do the same. It is important to include the name, address and mobile/telephone number of the person in the Will itself so that the heirs have no difficulty in tracing the attesting witnesses. A fitness certificate from a registered doctor can also be included and attached to the Will, If the testator is of an advanced age.
A will should not vaguely mention the properties and should have each of the properties mentioned thereunder well described. There should be no room for confusion.
The signatures of the testator should be put in such a way that it was intended to give effect to the writing of the will.
A will or any part of a will the making of which has been caused by fraud or coercion or by such importunity as takes away the free agency of the testator, is void.
Registration of Will
Though registration of a Will is not mandatory in India, if any individual wishes to add one more witness to his/her Will that is the Government of India (Sub-registrar’s Office), they may do so voluntarily with some efforts and additional cost. Registration of will has many advantages:
-The will cannot be easily tampered with
-It is assumed to be ‘valid’ unless proven otherwise.
-The chances of being challenged on the grounds of fraud or coercion drastically reduces.
-A safe record of the will is maintained with the Registrar for all future purposes.
What is the procedure for Registration a will?
Registration of will is governed by The Registration Act, 1908:
-A Will can be registered at the office of the Registrar/Sub-Registrar office which is in the jurisdiction of the place of residence of the Testator.
-One of the witnesses to the will shall accompany the Testator to the office of Registrar.
What are the things to keep in Mind while registering?
-The testator and the witnesses should carry their identity proof to the office of the Registrar, 2 passport size photos and the signed original will. The Testator should also bring a mental fitness certificate given by a registered Doctor recognised by the government.
-After Registration, the will should be kept in safe custody of the testator.
-At least one copy of the will should be kept with a person who can be trusted to be the announcer/ executor of the will upon the demise of the testator.
Apart from the counsel’s fee for drafting and registration, the Testator shall be incurred a cost on account of stamp paper and the registration charges.
Who can gain access to the Will?
-Public cannot access or inpect the will.
-The person who made the will can get a copy from the Sub-Registrar Office.
– After the demise of the Testator, his/her family members can get a copy from the Sub-Registrar Office by going through due verification process.
List of assets and liabilities
Before moving onto the format for drafting of a Will, the important task for the Testator is to make a list of his assets and liabilities and categorise those into the following:
a. Moveable properties
b. Immoveable properties
c. Lastly a bucket comprising family heirlooms, jewellery and other things of sentimental value for the family.
Liabilities subtractable from asset value
Before distributing his/her assets in the will, the testator should keep in mind that the liabilities of the person would be adjusted against the overall estate (assets) of the person thereby reducing it to some extent. .
Add heirs as joint holders/nominees
In case of moveable properties, it may be wise to include the heir to be added as a joint account holder / nominee such that transmission/transfer of the asset post your demise is a smoother process It would be wise to leave specific properties to particular individuals, rather than leaving it to two or more persons jointly to prevent disputes among heirs over the management of the properties. If it is not possible to segregate individual properties to individual heirs, then it can be provided in the Will as to how the heirs can distribute the properties among themselves. For example one way would be to state in the Will that one party can buy out the other heir at market value or at a pre-fixed price. , It must be noted that a nomination for a house/flat with a housing society only makes the nominee a trustee of the property (post the owner’s demise) and not the legal heir unless the nominee’s name is specified in the Will as the heir to that property. In respect of heirlooms which have sentimental value, not only is it important to mention the heir to a specific heirloom, it may also be wise to mention why such person should receive it.
How to choose an executor
It is extremely to choose person(s) who is/are close confidante(s), who would be willing to act as executor(s) of the Will. An executor of a Will is entrusted with the entire process of executing a Will i.e. from the task of collecting the assets of a person, to discharging the liabilities from such assets and thereafter distributing the same as per the Will. This whole process is called administration of the Will. Ideally, the executor chosen should be a trusted person and should also be younger than the testator in order to reduce the chances of the executor dying before the testator. The executor dying before the testator would only increase the complexities by making it necessary for the heirs to appoint another administrator.
Format of Will in India
The legal procedures in India for making a will is very simple but there are certain points should be considered in order to avoid any ambiguity in future. While there is no compulsion that a will should be in stamp paper, a person can draft his own will by following the below method.
How to draft?
The opening shall contain the personal details of the testator
-Testator’s name, age, residential address
-Name, age and address of spouse.
-Name age and address of children.
The Body of the will should introduce:
-All class 1 legal heirs.
-All movable and immovable properties of the testator, including an expression on how they have been procured and to what extent does the testator hold a share or interest in them.
-The testator needs to clarify if the executors are to pay the income generated from such property to any other family.
-The testator needs to clarify in circumstances where the executor dies before the testator.
-Clause to ascertain who would hold the property in case bequeathed on minors until they are major.
-Clarify payment of probate.
-Specifications onayment of any liabilities incurred in the past or during the ceremonies to be conducted upon death of the testator
-The name of each beneficiary and the properties to be given to them.
-Specification of division of properties between the daughters and implication on the will if they married. It should also specify circumstances if they remain unmarried.
-Declaration as to the free-will of the testator and the absence of any pressure, duress or coercion.
-At least two witness shall attest the will by signature or by placing their thumb prints along with their names and address at the end of the will. The identity proofs of the witnesses can be attached to provide further authenticity.
-In case of a registered will, the witnesses will have to accompany the testator during the process of registration, and may have to get their photograph and fingerprints taken for registration record
Signature of the Testator:
Finally, the will has to be signed properly by the testator at its end and it should be clearly construe that the signatures have been placed in order to give effect to it.
[i] Section 30 of the Hindu Succession Act, 1956
[iii] Section 2 of The Indian Succession Act, 1925